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December 13, 2008

"Prosecutorial Regulation Versus Prosecutorial Accountability"

The title of this post is the title of an important new paper from Stephanos Bibas now avaialble here via SSRN. Here is the paper's abstract:

No government official has as much unreviewable power or discretion as the prosecutor.  Few regulations bind or even guide prosecutorial discretion, and fewer still work well.  Most commentators favor more external regulation by legislatures, judges, or bar authorities.  Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. 

Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders.  Fear of voters could better check prosecutors, as could victim participation in individual cases.  Scholars have largely neglected the most promising avenue of reform, namely changing the internal structure and management of prosecutors' offices.  Leaders could do more to develop office cultures, norms, and ideals that value more than just maximizing conviction statistics.  Hierarchical office structures and internal procedural and substantive office policies could promote deliberation, give fair notice, and increase consistency.  Hiring, training, promotion, and tenure practices could better shape prosecutors and their behavior.  Pay structures and feedback from judges, defense counsel, and victims could encourage good behavior.  Finally, publishing more data on charges, convictions, plea bargains, and sentences could also improve accountability.

I am so very pleased to see more and more legal scholars (finally!) investing more and more time and energy into how to better regulate the work of prosecutors.  It will be interesting to see if and how all the new scholarly input has a real input on prosecutorial structures and decision-making.

December 13, 2008 at 01:23 PM | Permalink


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the best proposal I have heard on how to place accountability on prosecutors in the capital context is to require the county in which the capital takes place to pay one half of the cost of the trial. Then prosecutors will have to justify to the local county commissioners why a particular case is tried capitally. As it is now, the cost is spread around the state and very difficult to discern.

bruce cunningham

Posted by: | Dec 13, 2008 2:02:04 PM

I just commented on "prosecutorial discretion" at Rick Hills' post regarding the troubling consequences of the "Material Support" provision of the Anti-terrorism and Effective Death Penalty Act of 1996, 18 U.S.C. ยง2339B(a) over at PrawfsBlawg: http://prawfsblawg.blogs.com/prawfsblawg/2008/12/will-the-holder-doj-bring-sanity-to-material-support-prosecutions.html#more

And I've found Angela Davis' book, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), quite illuminating on this topic.

As I mention at Prawfs, unbounded prosecutorial discretion is all the more troubling in light of the failure to implement the constitutional right to competent/effective counsel (see: : http://legalethicsforum.typepad.com/blog/2008/11/the-growing-pub.html)

Posted by: Patrick S. O'Donnell | Dec 13, 2008 4:44:23 PM

I see the problem in a different light. In our culture, we want prosecutors to have discretion right up until that point in time when we disagree with their exercise of that discretion. Then we don't want them to have it anymore. This is true of judges as well.

The true test is when you support the exercise of discretion even when you disagree with it's exercise in a specific instance.

As a consequence, I believe that the ultimate check is the voters. If prosecutors get out of line, let the voters kick them out. The problem as I see it is simply that most voters don't know (and many frankly don't care) to know what their prosecutors are doing on a daily basis. This is not shocking because Americans as a people are disengaged from the political process at any level. Getting more information to the people is a plus, but I doubt it will actually be used because of the level of apathy that exists.

"Hiring, training, promotion, and tenure practices could better shape prosecutors and their behavior."

I see this concept as swatting the gnat while the elephant is running loose.

Posted by: Daniel | Dec 13, 2008 5:15:18 PM

There is an interesting little war raging in California.

Victims' rights expanded under new measure

In Los Angeles County, Cooley [DA] said a team of about 12 people is studying the measure and will report to him in two to three weeks.

"We are still analyzing it. Our initial take is Prop. 9 is unconstitutional, especially if applied retroactively," he said.

Cooley said for victims, Marsy's Law is a great leap forward. But he doesn't think the law will reach its full potential.

"I think it's flawed," he said, adding that many of the measure's provisions were already in place.

He also doubted if a victim can sit with a deputy DA and determine what charges can be filed against a suspect.

"It will not happen. They will have to sue me," Cooley said. "Just because you have the status of a victim doesn't make you an expert."

Posted by: George | Dec 13, 2008 6:02:19 PM

Note that in many states in the U.S. (unlike many other places in the world), those most likely to be attuned to prosecutorial excesses and inflexibility---i.e, convicted felons and prisoners---are disenfranchised and thus unable to contribute to democratic accountability. It is natural that non-prosectuted voters, on the whole, don't care, as very many probably don't know anyone affected adversely by prosecutorial discretion.

Lots of arguments pro and con prisoner/felon voting (though I find very few pros for *permanent* felon disenfranchisement, even after the full sentence and parole have been satisfied). Just noting that this is one factor in the lack of democratic accountability.

Now, if for example the War on Drugs was actually waged proportionally based on actual drug use within all neighborhoods/social classes/races, we might really see the democratic process in action as whiter, middle class voters were outraged to see their friends and relatives hauled off for mandatory minimum sentences. Here is sort of where police discretion on where to look for crime dovetails with prosecutorial discretion on whom to prosecute. But let me not get started on that.

ps- One thing that does *not* work, in my view, in improving prosecutors' performance is judges who rant and rave about how unethical such-and-such prosecutorial behavior was, and then affirm the conviction as harmless. This is about as effective a lesson as a parent lecturing his child on the evils of smoking while puffing on a Marlboro. An anonymous scolding---with no bar referral, no naming and shaming, no lost conviction---is just not an effective deterrent.

Posted by: Observer | Dec 13, 2008 6:17:46 PM

I support prosecutorial discretion, but ultimatly it is not the prosecutor who should be blaimed if it is not excercised. Our laws should be written such that if they are enforced in the most agressive manner allowed we would still be happy with the results. Instead, tought on crime politicians pass all types of horrible laws to combat specific problems, never considering the what would happen if those laws were enforced agressively in some other context. We need to stop criminalizing before the only thing standing between anyone and a prison sentence is prosecutorial discretion.

Posted by: Monty | Dec 13, 2008 9:16:25 PM

Dear Sir: I have enjoyed and learned much from your Blog over the years I have read it. Both in prison and in the "Free World".
I do,however, have a difficulty. Perhaps you would be kind enough to address it?
It seems I am unable to access the entire month from your "Archive" side bar. Only the latest 2 weeks and only two weeks of each month are available to me. Is there some reason for this or am I doing/not doing something properly? Your answer (and instruction,hopefully) is anxiously awaited.
In appreciation of all you have made available I remain,
Sincerly Yours,

Posted by: Tim Rudisill | Jan 2, 2009 11:53:41 AM

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